Citation Nr: 9912773
Decision Date: 05/10/99 Archive Date: 05/21/99
DOCKET NO. 94 - 12 030 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a rating in excess of 10 percent for residuals
of a shell fragment wound of the right knee with
posttraumatic arthritis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Frank L. Christian, Counsel
INTRODUCTION
The veteran served on active duty from December 1942 to
October 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of June 1992 from
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied, inter alia, a rating in
excess of 10 percent for residuals of a shell fragment wound
of the right knee with posttraumatic arthritis.
This case was previously before the Board in September 1996,
and was remanded to the RO to obtain additional evidence,
including current VA orthopedic, neurological and
radiological examinations, as well as medical opinions as to
secondary service connection for other disabilities. The
requested actions have been satisfactorily completed, and the
case is now before the Board for further appellate
consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the instant appeal has been obtained by the
RO.
2. The veteran's service-connected residuals of a shell
fragment wound of the right knee are currently manifested by
muscle weakness, altered weight-bearing, loss of mobility,
crepitus, pain on use productive of disuse weakness, a 5-
degree loss of extension, post-traumatic arthritis of the
knee joint, and other clinical findings limiting the
veteran's capacity for independent living, without evidence
of subluxation or instability.
CONCLUSION OF LAW
The criteria for an increased rating of 20 percent for
residuals of a shell fragment wound of the right knee with
posttraumatic arthritis are met. 38 U.S.C.A.
§ 1155, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. Part 4.
§§ , 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (1998);
General Counsel Precedent Opinion 9-98 (VAOPGCPREC 9-98),
issued August 14, 1998.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the appellant's claim is plausible and
is thus "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). A claim for an increased rating is
generally well grounded when the appellant indicates that he
has suffered an increase in disability. Proscelle v.
Derwinski, 2 Vet. App. 629 (1992); Drosky v. Brown, 10 Vet.
App. 251 (1997). We further find that the facts relevant to
the issue on appeal have been properly developed and that the
statutory obligation of VA to assist the veteran in the
development of his claim has been satisfied. 38 U.S.C.A. §
5107(a)(West 1991). In that connection, we note that the RO
has obtained available evidence from all sources identified
by the veteran, that he has been afforded a personal hearing,
and that he underwent comprehensive VA orthopedic,
neurologic, and radiographic examinations in connection with
his claim in August 1993 and in July 1997. On appellate
review, the Board sees no areas in which further development
might be productive.
In accordance with 38 C.F.R. §§ 4.1 and 4.2 (1998) and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed the medical record and all other evidence of record
pertaining to the history of the veteran's service-connected
residuals of a shell fragment wound of the right knee with
posttraumatic arthritis. The Board has found nothing in the
historical record which would lead to the conclusion that the
most current evidence of record is not adequate for rating
purposes. Moreover, the case presents no evidentiary
considerations which would warrant an exposition of remote
clinical histories and findings pertaining to that
disability.
I. The Evidence
The veteran sustained shell fragment wound (SFW) injuries in
combat during World War II, including injury to his right
knee. A report of VA orthopedic examination, conducted in
September 1981, showed that the veteran had a normal posture
and gait. Examination disclosed SFW scars and surgical scars
of the right knee, without evidence of motor, sensory or
reflex deficit. No knee instability or subluxation was
present, McMurry's and drawer's signs were negative, and a
full range of right knee motion was demonstrated from 0 to
140 degrees. X-ray studies of the right knee disclosed
hypertrophic spur formation in the patella, with no evidence
of loose bodies, displaced fracture, or bone destruction.
The diagnosis was postoperative residuals of a SFW, right
knee, with post-traumatic arthritis.
Based upon those findings, a rating decision of November 1981
granted service connection for residuals of a SFW of the
right knee with post-traumatic arthritis, evaluated as 10
percent disabling.
A VA outpatient orthopedic consultation in March 1983 showed
that there was a slight or minimal amount of swelling in the
right leg, below the knee joint in the calf area.
Examination of the veteran's right knee showed that both his
cruciate and collateral ligaments were stable, there was no
anteromedial drawer's sign, and there was no anteromedial or
anterolateral instability. Some moderate to severe
chondromalacia of the knee cap was present, with roughness of
the undersurface and in the central femoral condyles. X-ray
examination of the right knee revealed some early arthritic
changes, but no narrowing of the medial or lateral joint
space.
A report of VA orthopedic examination, conducted in October
1984, cited the veteran's complaints of occasional pains in
the right knee area, with no appreciable worsening, and
stiffness in the right knee joint after prolonged walking.
Examination revealed a healed, 1 and 1/2 inch scar over the
lateral surface of the right knee. Knee circumference was 15
and 1/2 inches on the right and 15 inches on the left. A full
range of knee flexion was present, bilaterally, while right
knee extension was limited to 160 degrees and crepitation was
noted on flexion and extension. Deep tendon reflexes were
equal and active at knees and ankles. X-ray studies of the
right knee revealed minimal hypertrophic spurring with
narrowing of the medial joint space. The impression was
degenerative joint disease. The diagnosis was SFW, right
knee, with residual degenerative joint disease.
A Board decision of April 1985 denied entitlement to a rating
in excess of 10 percent for the veteran's service-connected
residuals of a shell fragment wound of the right knee with
posttraumatic arthritis.
In April 1991, the veteran again sought entitlement to a
rating in excess of 10 percent for his service-connected
right knee disability, calling attention to his recent
hospitalization at a VA medical facility. However, a VA
hospital summary, dated in March 1991, showed that the
veteran had been admitted for evaluation and treatment of
severe peripheral vascular disease with right leg
claudication, secondary to aortic iliac disease. His
service-connected right knee disability was not implicated in
those findings.
VA outpatient treatment records, dated from March 1981 to
January 1992, disclosed no significant limitation of motion,
instability, or other impairment of the right knee
attributable to the veteren's service-connected right knee
disability.
In May 1992, the veteran again sought entitlement to a rating
in excess of 10 percent for his service-connected right knee
disability, calling attention to his recent outpatient clinic
treatment at VA medical facilities.
VA outpatient clinic treatment records dated in October 1991
included a report of electrodiagnostic testing which revealed
a mild chronic right radiculopathy of, L3-S1, with a very
mild sensory neuropathy. Records dated in November and
December 1991 and in January and May 1992 showed that the
veteran's complaints of right lower extremity pain were
evaluated as secondary to severe peripheral vascular disease
with right leg claudication.
A rating decision of June 1992 denied entitlement to a rating
in excess of 10 percent for the veteran's service-connected
residuals of a shell fragment wound of the right knee with
post-traumatic arthritis, giving rise to this appeal.
A report of VA orthopedic examination, conducted in August
1993, cited the veteran's complaints of right knee pain since
service, but noted his history of working in construction
until age 58. The examiner noted that review of the record
disclosed that the veteran had developed intermittent
claudication of the entire right knee with pain on walking
more than two blocks, and that electrodiagnostic testing had
revealed a mild right L3-S1 radiculopathy. Examination
disclosed that the veteran walked with a normal gait and
could walk on heels and toes and partially squat, but could
not hop on either leg. There was no deformity, crepitus,
swelling, or instability of the right knee and a full range
of right knee motion from 0 to 140 degrees was present.
There were no side movements of the knee, and drawer's sign
was negative. Knee jerks were equal, but ankle jerk was
absent on the right and there was impaired sensation to
pinprick at the right calf and right toes. No tenderness of
the right knee was present. There were four nontender
shrapnel wound scars of the lateral right patella, ranging in
size from 1 cm. to 4.5 cm. X-rays studies of the right knee
disclosed a slight narrowing of the subpatellar joint space
on the right. The diagnoses included shrapnel wound scars,
right knee; severe peripheral vascular disease of both lower
extremities with intermittent claudication of the right with
two block[ages]; and mild chronic lumbar radiculopathy, L3-S1
of the right lower extremity. The examiner further noted
that there was no pain at the right knee, but pain associated
with walking in the entire right lower extremity.
A personal hearing was held before hearing officer at the RO
in April 1994. The veteran testified as to the history of
his SFW's sustained in combat, his right knee disability and
the medical treatment he received during and subsequent to
service. He related the symptoms of his right knee
disability and the industrial impairment resulting from that
injury. He and his spouse also offered testimony as to
several disabilities not currently at issue. The veteran
expressed understanding of the distinction between his
service-connected SFW of the right knee and his peripheral
vascular disease and arterial blockage affecting the right
lower extremity. The veteran's spouse offered eyewitness
testimony as to the impairment of function resulting from the
veteran's right knee disability. A transcript of the
testimony is of record.
As noted, in September 1996 the Board remanded the case to
the RO for additional development, to include obtaining
current VA orthopedic, neurological and radiological
examinations.
Outpatient clinic treatment records from the VA medical
facilities at Milwaukee and Iron Mountain, dated from May
1992 to April 1997 show that the veteran continued to be seen
for multiple complaints, including right leg pain due to
claudication after walking only short distances. A magnetic
resonance imaging scan in July 1996 revealed a bulging disc
at L2-3; facet arthropathy at L3-4 with foraminal
encroachment, a bulging disc, and narrowing of the spinal
canal; a bulging disc at L4-5, with facet arthropathy and
foraminal encroachment, bilaterally; and a bulging disc at
L5-S1, with facet arthropathy and foraminal encroachment. In
August 1996, the vascular clinic referred the veteran, who
had a history of peripheral vascular disease of both lower
extremities with chronic claudication, in order to rule out a
neurogenic cause for his increasing debility in ambulation.
An August 1996 report of orthopedic consultation noted a
moderate narrowing of the spinal cord [sic] at L3-L4 which
was determined to be a partial contribution to his
claudication, identified as mild spinal stenosis, and a
diffuse degenerative disc disease but was inconclusive,
suggesting further study and a possible epidural block.
A report of VA orthopedic examination, conducted in July
1997, cited the veteran's history of a SFW of the right knee
with post-traumatic arthritis, as well as his nonservice-
connected peripheral vascular disease of both lower
extremities with chronic claudication. He required the use
of a cane, and ambulation was limited to 100 feet by both
knee and calf pain. His calf pain was relieved by stopping,
standing or sitting, and knee pain was relieved by sitting.
He denied weakness, and stated that he took medication for
knee pain. His gait was antalgic with decreased weight-
bearing on the right and a flexed right knee during stance.
Examination revealed no evidence of swelling or erythema of
the right lower extremity, and no valgus or varus deformity
of the right knee. The right knee was slightly larger than
the left secondary to degenerative changes, mid-calf
circumference was equal, and mid thigh circumference was 1/4
inch less on the right. Scars were present over the right
knee, although there was no tenderness to palpation over the
right knee.
Degenerative irregularities were noted at the right patella,
and crepitus was appreciated on flexion and extension of the
right knee joint. There was no subluxation or instability of
the right knee joint, and the active range of motion was to
145 degrees of flexion and -5 degrees on extension, while
extension was to neutral on passive motion. Strength testing
was 4/5 on right knee flexion and extension. X-ray
examination of the right knee revealed that the tibial spines
were sharp and pointed, and there was a small spur at the
right inferior patellar pole, suggestive of early
degenerative change. The diagnoses included degenerative
joint disease of the right knee with crepitus, extensor leg
[sic], and quadriceps weakness.
The orthopedic examiner expressed the opinion, in pertinent
part, that right knee pain and loss of mobility was leading
to disuse weakness, an altered gait pattern, altered weight-
bearing, and a worsening of the veteran's degenerative joint
disease of the knee joint.
A report of VA neurological examination, conducted in July
1997, cited the veteran's history of lower extremity numbness
and pain on walking a distance of 100 feet for the last 10 to
12 years, relieved by stopping a few minutes, then recurring
on walking approximately 100 feet. He was noted to have a
history of peripheral vascular disease of both lower
extremities, coronary artery disease, stroke, and
degenerative joint disease, with chronic leg pain,
hypertension, and stable angina. Examination revealed a slow
gait. He could tandem walk with some difficulty. Romberg
was negative, and the muscle tone was normal in all four
extremities. Cerebellar function tests were normal. Sensory
examination revealed a deceased sensation to touch in a
stocking distribution in both lower extremities. Deep tendon
reflexes were 2+ at the knees, absent at the ankles,
bilaterally. Plantar response was in flexion. The diagnoses
included intermittent claudication, probably due to spinal
vascular insufficiency; vascular Parkinsonism; and sensory
neuropathy in both lower extremities. The examiner expressed
the opinion that those conditions were limiting the veteran's
capacity for independent living due to his discomfort and
limited gait.
II. Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 1991 & Supp.
1998); 38 C.F.R. Part 4 (1998). Separate diagnostic codes
identify the various disabilities. Where entitlement to
service connection has already been established, and an
increase in the disability rating is the issue, the present
level of the disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55 (1994).
The Board notes, in passing, that a rating decision of
October 1998, granted service connection for limitation of
motion of the right hip and for a right ankle disability,
each as secondary to the veteran's service-connected
residuals of a shell fragment wound of the right knee with
posttraumatic arthritis, and has assigned a 10 percent
disability rating for each of those conditions.
The appellant contends that his service-connected residuals
of a shell fragment wound of the right knee with
posttraumatic arthritis are more disabling than currently
evaluated, and that an increased rating is warranted. The
record shows that the RO has evaluated the veteran's service-
connected residuals of a shell fragment wound of the right
knee with posttraumatic arthritis under the provisions of
38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5010 (traumatic
arthritis), and assigned an evaluation of 10 percent.
The RO and the Board have considered the evaluation of the
veteran's right knee disability under all potentially
applicable diagnostic codes in order to determine whether
another diagnostic code might yield a higher rating
evaluation, including
diagnostic codes 5256 (ankylosis of the knee), 5258
(dislocated semilunar cartilage), 5259 (removal of semilunar
cartilage, symptomatic), 5260 (limitation of flexion of leg),
and 5262 (impairment of tibia and fibula). As the record
includes no clinical findings or diagnosis of ankylosis of
the knee, as required by DC 5256; no evidence of a dislocated
semilunar cartilage or excision of a semilunar cartilage, as
required under DC 5258 and DC 5259; no demonstrated or
diagnosed limitation of flexion, as contemplated by DC 5260;
and no clinical evidence of impairment of tibia and fibula,
as required by DC 5262, the Board finds that evaluation of
the veteran's right knee disability under any of those
diagnostic codes would not yield an evaluation in excess of
the current 10 percent rating assigned for that disability.
The RO and the Board have also considered evaluation of the
veteran's residuals of a shell fragment wound of the right
knee with posttraumatic arthritis in light of the provisions
of 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5014
(osteomalacia), 5260 (limitation of flexion of leg), and 5257
(other impairment of knee; recurrent subluxation or lateral
instability). However, evaluation of the veteran's right
knee disability under DC 5014 (osteomalacia), DC 5261
(limitation of extension of leg), or DC 5257 (other
impairment of knee; recurrent subluxation or lateral
instability) would not yield an evaluation in excess of the
current 10 percent rating assigned for the veteran's service-
connected right knee disability. Osteomalacia (or
chondromalacia) is evaluated on limitation of motion of the
affected parts under DC 5003 (degenerative arthritis). The
record shows that the veteran's limitation of right leg
extension (to -5 degrees) shown on VA orthopedic examination
in July 1997 meets the criteria for a zero percent rating but
does not meet the minimum requirement for a compensable
evaluation under DC 5261, which is limitation of extension to
10 degrees. For that reason, an evaluation in excess of 10
percent would not be warranted under the provisions of DC
5014 or 5261. Further, as there is no objective clinical
evidence demonstrating or diagnosing subluxation or
instability of the right knee, the veteran's residuals of a
shell fragment wound of the right knee with posttraumatic
arthritis may not be evaluated under DC 5257.
Although General Counsel Precedent Opinion 23-97 (VAOPGPREC
23-97), issued July 24, 1997, authorized ratings under both
Diagnostic Code 5003 and 5257 when a veteran experiences both
arthritis and knee instability, the Board again notes that
the veteran has no demonstrated or diagnosed subluxation or
instability with respect to his right knee and thus
evaluation under DC 5257 is inapplicable.
Based upon the foregoing, the Board finds that the schedular
criteria for a rating in excess of 10 percent for residuals
of a shell fragment wound of the right knee with
posttraumatic arthritis are not met under the provisions of
38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5014, 5256, 5257,
5258, 5259, 5260, 5260, 5261, and 5262 (1998).
38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5010 (1998)
provides that arthritis due to trauma, substantiated by X-ray
findings, will be rated as degenerative arthritis under
diagnostic code 5003. Diagnostic Code 5003 provides that
degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. When, however, the limitation of motion for the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, as in this case, a rating of 10
percent is for application for each such major joint or group
of minor joints affected by limitation of motion, to be
combined, not added under diagnostic code 5003. Limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of gainful
motion. In the absence of painful motion, a 10 percent
evaluation will be assigned where there is X-ray evidence of
involvement of two or more major joints or 2 or more minor
joint groups, and a 20 percent evaluation will be assigned
where there is X-ray evidence of involvement of two or more
major joints or 2 or more minor joint groups, with occasional
incapacitating episodes. In this case, the evidence of
record objectively confirms painful motion of the right knee,
as well as X-ray evidence of degenerative (post-traumatic)
arthritis.
The United States Court of Appeals for Veterans Claims
(Court) has held that the evaluation of any musculoskeletal
disability must consider the provisions of 38 C.F.R. Part 4,
§§ 4.40 and 4.45 (1998), including matters of weakened
movement, excess fatigability, incoordination, and loss of
function due to pain on use or during flare-ups. DeLuca v.
Brown, 8 Vet. App. 202 (1995).
38 C.F.R. Part 4, § 4.40 provides that disability of the
musculoskeletal system is primarily the inability, due to
damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance. It is essential
that the examination on which ratings are based adequately
portray the anatomical damage, and the functional loss, with
respect to all these elements. The functional loss may be
due to absence of part, or all, of the necessary bones,
joints and muscles, or associated structures, or to
deformity, adhesions, defective innervation, or other
pathology, or it may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
claimant undertaking the motion. Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. A little used part
of the musculoskeletal system may be expected to show
evidence of disuse, either through atrophy, the condition of
the skin, absence of normal callosity or the like.
Further, 38 C.F.R. Part 4, § 4.45 provides that the factors
of joint disability reside in reductions of their normal
excursion of movements in different planes, and that inquiry
will be directed to the following considerations:
(a) Less movement than normal (due to ankylosis,
limitation or blocking, adhesions, tendon-tie-up, contracted
scars, etc.);
(b) More movement than normal (from flail joint,
resections, nonunion of fracture, relaxation of ligaments,
etc.);
(c) Weakened movement (due to muscle injury, disease or
injury of peripheral nerves, divided or lengthened tendons,
etc.);
(d) Excess fatigability;
(e) Incoordination, impaired ability to execute skilled
movements smoothly;
(f) Pain on movement, swelling, deformity or atrophy of
disuse. Instability of station, disturbance of locomotion,
interference with sitting, standing and weight-bearing are
related considerations.
For the purpose of rating disability from arthritis, the
shoulder, elbow, wrist, hip, knee, and ankle are considered
major joints . . . .
38 C.F.R. Part 4, § 4.59 provides that with any form of
arthritis, painful motion is an important factor of
disability, the facial expression, wincing, etc., on pressure
or manipulation, should be carefully noted and definitely
related to affected joints . . . The intent of the schedule
is to recognize painful motion with joint or periarticular
pathology as productive of disability. It is the intention
to recognize actually painful, unstable, or maligned joints,
due to healed injury, as entitled to at least the minimum
compensable rating for the joint. Crepitation either in the
soft tissues such as the tendons or ligaments, or crepitation
within the joint structures should be noted carefully as
points of contact which are diseased. Flexion elicits such
manifestations. The joints involved should be tested for
pain on both active and passive motion, in weight-bearing and
nonweight-bearing and, if possible, with the range of the
opposite undamaged joint. General Counsel Precedent Opinion
9-98 (VAOPGCPREC 9-98), issued August 14, 1998, held that for
a knee disability rated under DC 5257 to warrant a separate
rating for arthritis based on X-ray findings and limitation
of motion, the limitation of motion under DC 5260 or 5261
need not be compensable but must at least meet the criteria
for a zero-percent rating. That GC opinion further held,
however, that:
As we noted in VAOPGCPREC 36-97, Court
precedent is unclear as to whether
sections 4.40 and 4.45 apply only to
diagnostic codes that are based on
limitation of motion. See Johnson v.
Brown, 9 Vet. App. 7, 11 (1996)
(sections 4.40 and 4.45, with respect to
pain, are not applicable to ratings under
DC 5257 because DC 5257 is not predicated
on loss of range of motion). But see
Spurgeon v. Brown, 10 Vet. App. 194, 196
(1997). Nevertheless, it is clear from
the [case law of the Court] that
diagnostic codes involving disability
ratings for limitation of motion of a
part of the musculoskeletal system do not
subsume sections 4.40 and 4.45. See
DeLuca v. Brown, 8 Vet. App. 202, 206
(1995). Limitation of motion in the
affected joint or joints is a common
manifestation of arthritis, and [the
Court] has indicated that DC 5003 is to
be "read in conjunction with" section
4.59 and that DC 5003 is "complemented
by" section 4.40. See Hicks v Brown, 8
Vet. App. 417, 420-21 (1995). Thus,
sections 4.40, 4.45, and 4.59 all appear
to be applicable in evaluating arthritis.
Based upon the foregoing, it was held that:
The provisions of 38 C.F.R. §§ 4.40,
4.45, and 4.59 must be considered in
assigning an evaluation for degenerative
or traumatic arthritis under DC 5003 or
DC 5010. Rating personnel must consider
functional loss and clearly explain the
impact of pain upon the disability.
The above-cited General Counsel (GC) opinion had been issued
at the time of the most recent Supplemental Statement of the
Case and, while applicable to the instant appeal, does not
appear to have been considered by the RO. Under ordinary
circumstances, such would require another Remand in order to
permit initial
consideration of the veteran's right knee claim in light of
that GC opinion. The Board notes, however, that this case
has been on appeal since 1992; that it has already been
remanded to the RO on one occasion; and that the clinical
findings with regard to the veteran's right knee include
muscle weakness, an altered gait pattern, altered weight-
bearing, loss of mobility, crepitus, pain on use productive
of disuse weakness, a 5-degree loss of extension, post-
traumatic arthritis of the knee joint, and other clinical
findings limiting the veteran's capacity for independent
living, all of which would render the cited GC opinion
applicable to the veteran's right knee disability. For that
reason, another remand for consideration of the veteran's
right knee evaluation in light of the GC opinion would be a
futile expenditure of resources, cause delay in the
resolution of the veteran's appeal, and yield no positive
result.
Based upon the clinical findings on recent VA orthopedic,
neurologic, and radiographic examinations, as set out in the
Evidence section of this decision, and with consideration of
the applicable schedular ratings and the cited General
Counsel opinion, the Board finds that the veteran is entitled
to an increased rating of 20 percent for his service-
connected residuals of a shell fragment wound of the right
knee with posttraumatic arthritis.
The veteran has not asserted that the schedular ratings are
inadequate and there is no credible evidence that he is
unemployable due to his service-connected disabilities.
Further, the record in this case presents no evidence or
argument to reasonably indicate that the provisions of
38 C.F.R. §§ 3.321(b)(1) or 4.16(b) (1998) are potentially
applicable. Nor is there evidence of circumstances which the
appropriate officials might find so "exceptional or
unusual" as to warrant an extraschedular rating. Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, the
Board will not address the issues of benefit entitlement
under the provisions of 38 C.F.R. § 3.321(b)(1) or 4.16(b)
(1998).
ORDER
An increased rating of 20 percent for residuals of a shell
fragment wound of the right knee with post-traumatic
arthritis is granted, subject to controlling regulations
governing the payment of monetary benefits.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals